Ethics and Anti-Corruption Commission v Chembe Holdings Limited & 4 others (Civil Suit 70 & 71 of 2009 (Consolidated)) [2024] KEELC 6432 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed defendants in a 15-year-old land case to amend their defence and add a counterclaim, despite the delay.
What this practically means
#Executive summary
#Key legal issues
#Principles governing amendment of pleadings
The power to amend, drawn from Section 100 of the Civil Procedure Act and Order 8 of the Civil Procedure Rules, is exercisable at any stage before judgment, must be exercised judiciously, and amendments should be freely allowed if made in good faith and any prejudice can be compensated by costs.
The court reviewed Order 8 Rule 5, Bullen and Leake, Halsbury's Laws, and the Court of Appeal decisions in Ochieng v First National Bank of Chicago, St. Patrick's Hill School and AAT Holdings. It distilled that amendments aim at determining the true substantive merits, must not change the character of the case, must not deprive the other side of legal rights, and delay is curable by costs.
Whether leave to amend the Defence and introduce a Counter-Claim should be granted in a part-heard matter
Yes. The applicants' discovery that the suit properties had been amalgamated into Mombasa Island Block I/576 during the pendency of the suit raised real issues requiring interrogation; only inconvenience, compensable by thrown-away costs, would be caused to the Plaintiff.
The court found the matter had not proceeded to hearing (notwithstanding respondents' claim it was part heard), that the applicant had annexed a draft Amended Defence and Counter-Claim, and that although the applicants were tardy, the interest of justice, determination of the real issues and avoidance of multiplicity of suits favoured granting leave, with the Plaintiff granted corresponding leave to amend.
Costs of the application
Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful party ordinarily gets costs, but here thrown-away costs of Kshs. 50,000 were awarded to the Plaintiff for inconvenience, and the application costs were made to abide the suit.
Relying on Section 27(1) of the Civil Procedure Act and the Supreme Court decisions in Jasbir Rai Singh and Cecilia Karuru Ngayo, the court affirmed that a successful party should ordinarily be awarded costs unless good reason directs otherwise. It balanced this with thrown-away costs for the inconvenience of the amendment.
Legal principles established
#- Amendments of pleadings should be freely allowed unless they cause prejudice not compensable by costs; delay alone does not preclude amendment where costs can compensate.
- A court may allow amendment of pleadings at any stage of the proceedings, including in a part-heard matter, if necessary to determine the real issues in controversy.
Court orders
#- 1.The Notice of Motion application dated 28th May, 2024 be and is hereby found to have merit and is allowed entirely
- 2.Leave granted to the 2nd, 4th and 5th Defendants/Applicants to further amend their Defence and to introduce a counterclaim in terms of the annexed draft Amended Written Statement of Defence and Counterclaim
- 3.The 2nd, 4th and 5th Defendants/Applicants to file their Amended Defence and Counter-Claim within 7 days of the ruling
- 4.The Plaintiff/Respondent granted corresponding leave of 7 days to file a Further Further Amended Plaint and respective responses to the Amended Defence and Counter-Claim, if need be, and Defence to the Counter-Claim
- 5.The Plaintiff/Respondent shall have costs of Kshs. 50,000/- as thrown away costs, borne by the 2nd, 4th and 5th Defendants jointly and severally
- 6.The scheduled hearing of the matter to remain as 19th November, 2024
- 7.Costs of the application to abide the outcome of the suit
- Jurisdiction invoked
- Sections 3A and 100 of the Civil Procedure Act, Cap. 21; Order 2 Rule 15 and Order 37 Rule 7(2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Chembe Holdings Limited & 4 others (Civil Suit 70 & 71 of 2009 (Consolidated)) [2024] KEELC 6432 (KLR)", Case Analysis (2024). Notice of Motion application dated 28th May, 2024 in the main suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6432/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.